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Thompson v. City of Bozeman9/15/1997
rvivorship damages. Brockie, 887 P.2d at 170 (citation omitted). Similarly, in a case where a jury found that the defendants committed wrongful acts which caused injury to the plaintiffs, but awarded no damages for pain and suffering, we held that it was the jury's duty to award pain and suffering damages when the evidence clearly established that the plaintiffs suffered painful injury and the defendants presented no evidence to the contrary. Gehnert v. Cullinan (1984), 211 Mont. 435, 439, 685 P.2d 352, 354.
Notwithstanding these cases, the City relies on Maykuth v. Eaton (1984), 212 Mont. 370, 687 P.2d 726, in arguing that the District Court in this case impermissibly substituted its judgment for the judgment of the jury on the issue of pain and suffering damages. We disagree.
In Maykuth, the plaintiff testified to severe injuries and substantial pain resulting from a vehicle accident. The defendant presented evidence that most of the plaintiff's injuries and associated pain had pre-existed, and were not aggravated by, the accident and that some of his physical problems and associated pain resulted from factors other than the accident. Maykuth, 687 P.2d at 726. The district court concluded that a jury award of $700 for the plaintiff's pain and suffering was unjust and inadequate as a matter of law based on the plaintiff's testimony at trial. Maykuth, 687 P.2d at 727. We held on appeal that, in light of the conflicting evidence presented, the jury was not compelled to believe the plaintiff's testimony and, therefore, it was error for the district court to substitute its judgment for that of the jury regarding the adequacy or extent of pain and suffering damages. Maykuth, 687 P.2d at 727.
Maykuth illustrates the standard which applies to the issue of the adequacy of the amount of damages actually awarded by a jury as opposed to the Brockie standard which applies to whether the evidence supports an award of no damages at all. When a jury awards at least some damages based on its assessment of conflicting evidence and weighing of witness credibility, a court may not substitute its judgment as to the proper amount of damages for that of the jury simply because the jury chose to believe one party over another. Maykuth, 687 P.2d at 727; Barnes v. United Industry, Inc. (1996), 275 Mont. 25, 34, 909 P.2d 700, 705. However, where a jury fails to award any damages when the only evidence of record supports an award, that verdict is not supported by substantial evidence and may be set aside. Brockie, 887 P.2d at 170.
Here, Thompson presented evidence that the City's negligence caused her injury and the City presented conflicting evidence through its causation witnesses. The jury found in Thompson's favor on that issue. Thompson also presented substantial evidence that she experienced pain and suffering for at least several months as a result of being injured in the vehicle accident. The City did not controvert her evidence on pain and suffering. Because no substantial evidence supports the jury's failure to award damages for pain and suffering, the jury's verdict in this regard was "impossible." See Brockie, 887 P.2d at 170. We conclude that there was insufficient evidence to support the jury's award of zero damages for Thompson's pain and suffering.
b. District Court's grant of new trial on pain and suffering damages
When the evidence presented to a jury is insufficient to justify the jury's verdict, a district court may vacate the verdict and grant a new trial. Section 25-11-102(6), MCA. This Court will not overturn a district court's grant of a new trial absent a manifest abuse of discretion. Maurer, 912 P.2d at 198.<
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